Coolbaugh v Banat

[*1] Coolbaugh v Banat 2005 NYSlipOp 51041(U) Decided on July 1, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 1, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: July 1, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and GOLIA, JJ.
2004-1212 K C

Jennifer E. Coolbaugh, Respondent,

against

George Banat, Appellant.

Appeal by defendant from a small claims judgment of the Civil Court, Kings County (B. Bayne, J.), entered October 22, 2003, in favor of plaintiff in the sum of $1,848.41 and dismissing defendant's counterclaim.

Judgment unanimously modified by reducing the amount of the award in favor of plaintiff to the principal sum of $322.50; as so modified, affirmed without costs.

It is uncontested that on July 2, 2003, plaintiff paid defendant a security deposit of $1,325 as well as the sum of $475 representing half of the cost to refinish the wood floors in the apartment. Plaintiff commenced the instant small claims action to recover
said sums. While plaintiff testified that she did not request that the floors be refinished, defendant testified to the contrary. Plaintiff further testified that although she gave defendant said sums of money, she never stated when she would move into the apartment and told the defendant on June 30, 2003 that she would make a decision as to whether she was taking the apartment after all of the work was completed. Plaintiff also testified that on July 13, 2003, she left a message on defendant's answering machine informing him that she would not be moving into the apartment and on July 14, 2003, defendant told her that work on the floors had not yet been started. Defendant testified that plaintiff agreed to move into the apartment on July 15, 2003 after all of the work was completed. Defendant acknowledged in his appellate brief that he only lost rent for the last two weeks of July. Under the circumstances presented herein, we find that plaintiff is entitled to a return of her security deposit minus half a month's rent ($662.50) and minus the cost defendant incurred in advertising the apartment ($340). Therefore, substantial justice requires that the judgment be modified by reducing the award in favor of plaintiff to the principal sum of $322.50 (CCA 1807).
Decision Date: July 01, 2005